On Voting Rights, the Court Finds Consensus

The Supreme Court today voted on narrow grounds to uphold the Voting Rights Act, a law that for decades has helped ensure African-American access to the ballot, and has come to represent rare bipartisan consensus on a race-related issue. It also was responsible for helping Barack Obama win the White House. Today’s 8-1 decision sidestepped the most contentious question of whether or not the Act is constitutional. In doing so, the conservative majority – which in a 5-4 March ruling circumscribed the act – temporarily fulfilled Chief Justice John Roberts’ pledge to find consensus and defer to precedent.

Today’s decision, though narrow, is in fact an important moment for the court and in the history of civil rights and the Voting Rights Act. By not taking this opportunity to overturn the Act’s key section, Roberts’ conservative majority defied court-watchers’ expectations, and highlighted just how successful the Act has been since its original passage. It also shows the extent to which a political, judicial, and institutional consensus has emerged in support of its continued existence.

The Act, passed in 1965 and expanded in 1975 to include “language minorities,” was first reauthorized by Congress in 1970, a second time in 1975, and again in 1982. That year committees on Capitol Hill held 27 days of testimony about voter discrimination and minority representation. In the end, both Republicans and Democrats concluded that there remained considerable “manipulation of registration procedures and the electoral process” in certain states and jurisdictions, and that this had effectively excluded African-Americans and Hispanics not only from achieving equal access to the voting booth but also from fair representation in state and federal government. “Minority voting strength,” Congress declared, had been “dilute[d].”

Under the leadership of Republican Senator Bob Dole, Congress rewrote Section 2 to forbid any political process in which a “totality of circumstances” showed that the electoral process had produced a discriminatory result. In other words, if an electoral process could be shown to have systematically disadvantaged a minority group – whether racism was the intent or not—then that process could be challenged in court. Congress also reauthorized Section 5, mandating that certain states and localities receive permission, or “pre-clearance,” from a federal court or the justice department before making any changes to its election procedures. The Senate then voted 85 to 8 in favor of renewal for 25 years, and large bipartisan majorities in the House also approved the re-authorization. The 1982 action established that African-Americans and other minority groups must have access to the ballot, and declared that fair representation in local, state and federal government was a rightthat had not yet been achieved.

In his book The Two Reconstructions: The Struggle for Black Enfranchisement, political scientist Richard Valelly has shown that the 1982 reauthorization and the Court's subsequent rulings upholding Section 5’s oversight of election procedures had a staggering effect on black voting and black political representation. In Alabama, Georgia, Mississippi and Virginia, while the percentage of the black electorate remained unchanged between 1984 and 1993, the number of local black elected officials substantially increased. In Alabama, for example, the number of African-American officeholders rose from 241 to 605; in Georgia, it climbed from 250 to 459; in Mississippi—from 296 to 546, and in Virginia, it went from 86 to 125.

A mini-revolution in the percentage of black representatives in southern state governments was also underway. Legal challenges to districting plans denying minority candidates equal access to the political process led to the establishment of smaller districts more favorable to minority candidates. In 1980, Mississippi had one black representative in its state lower chamber; by 1993 – nine years after Congress had voted to reauthorize Section 5 – the state had 15 black representatives. In subjecting devices such as discriminatory at-large elections and multi-member legislative districts to judicial oversight, the 1982 reauthorization ultimately touched off a cycle: More African-Americans won state legislative office, and they in turn exerted greater influence on the congressional re-districting process—paving the way for the establishment of an expanded Congressional Black Caucus in the U.S. House. In 1990, when state legislatures in the South reapportioned districts according to new census data, 13 new black representatives won election to Congress, bringing the number of African Americans serving in the House to an all-time high of 38. Thus the 1982 reauthorization helped to level the playing field not just for black voting but also for black office-holding.

The news media too often overlooks these developments. Reporters tend to draw a straight line from Martin Luther King’s civil rights movement to Barack’s Obama’s transformational election victory: As the story goes, African-Americans, with King at the helm, engaged in non-violent protests in the 1960s, ending the Jim Crow era. They gained access to the ballot box, earned other hard-won victories, and ultimately a post-racial Obama came along to fulfill King’s multi-cultural “dream” of an America where race doesn’t matter.

But the truth is more complicated. Obama’s victory in the Democratic primary can be traced in no small partto massive African-American turnout and state and local political support from black elected officials. Obama won in Georgia, South Carolina, Alabama, North Carolina and other crucial southern states because state and local African-American Democratic officials provided early endorsements, assisted with grassroots organizing, and affirmed Obama within the African-American community when he was still a White House long-shot. Had Section 5 not been reauthorized multiple times, and if the Supreme Court had failed to redress the issue of minority vote dilution in the 1980s, his victory would have been virtually unthinkable.

Take South Carolina.Columbia City Council Members E.W. Cromartie and Tameika Isaac Devine and state representatives Joe Jefferson and Bakari Sellers and Ernest Finney were among Obama’s early endorsers. Obama’s support came from African-American local, state, and federal officials, all living in the world the Voting Rights Act made. Finney’s support was particularly important because he is a founder of the South Carolina House Legislative Black Caucus.

The pattern continued in Georgia, where African-American Congressmen Sanford Bishop and Hank Johnson endorsed Obama in 2007; and where African-American mayors such Willie Burns, who was president of Georgia’s Black Mayors Association, and Atlanta’s Shirley Franklin, who was the first [southern] African-American female mayor of a major southern city, provided Obama’s campaign with visibility, momentum, and grassroots support to turn out the vote in his race against Hillary Clinton.

In North Carolina, more than two dozen state legislators endorsed Obama on April 22, 2008. Many of them were African-Americans, who brought their organizational prowess to bear on Obama’s primary campaign; indeed, when the history of Obama’s victory is written, it’s conceivable that South Carolina and North Carolina will loom extraordinarily large as factors in his victory – and that neither one would have happened without black votes and strong support from African-American state legislators.

Ironically, then, Obama won the White House in part because conservative Republicans, including Dole and Reagan, reauthorized a strengthened Voting Rights Act in 1982. In 2006, a Republican-dominated Congress reauthorized the Act again, with then-Senate Majority Whip Mitch McConnell explaining that lawmakers had long endorsed and voted for the Act “overwhelmingly, and on a bipartisan basis, year after year after year because Members of Congress realize[d] this [wa]s a piece of legislation which has worked.”

The goal, of course, is that the Act will work so effectively that it will eventually become obsolete. But just three years ago, after listening to testimony and analyzing evidence, legislators almost unanimously decided that day is not yet here. Discrimination, they concluded, continues to persist and minorities are still dramatically underrepresented in elective office, and so the Act still plays an essential role.

Today’s Supreme Court opinion did leave the door open to the possibility of overturning the Act. As the Atlantic’s Marc Ambinder notes today in his blog, the court said that section 5 “Raises ‘serious constitutional questions’ and that localities can 'bail out' [of section 5 requirements in some circumstances]. That suggests that the Court wants a new challenge to the constitutionality of the provision....”

But for now at least, as the 8-1 ruling attests, the continued efficacy and importance of the act remain persuasive.

Mary Ellen Curtin teaches African-American history at George Washington University and is writing a biography of Congresswoman Barbara Jordan. Matthew Dallek is a visiting scholar at the Bipartisan Policy Center and teaches history and politics at the University of California Washington Center.